Human rights and personal self-defense in international law

401 Pages·2017·3.34 MB·English

1
i

Human Rights and Personal Self-D efense
in International Law
ii
iii

Human Rights and
Personal Self-D efense
in International Law
Jan arno Hessbruegge
1
Human Rights and Personal Self-D efense in International Law. Jan Arno Hessbruegge
© Oxford University Press 2017. Published 2017 by Oxford University Press.
iv
1

Oxford University Press is a department of the University of Oxford. It furthers the University’s
objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is
a registered trademark of Oxford University Press in the UK and certain other countries.
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America.
© Oxford University Press 2017
First Edition published in 2017
All rights reserved. No part of this publication may be reproduced, stored in a retrieval syste m,
or transmitted, in any form or by any means, without the prior permission in writing of
Oxford University Press, or as expressly permitted by law, by license, or under terms agre ed
with the appropriate reproduction rights organization. Inquiries concerning reproduction outside
the scope of the above should be sent to the Rights Department, Oxford University Press, at the
address above.
You must not circulate this work in any other form
and you must impose this same condition on any acquirer.
Library of Congress Catalogingi -n-P ublication Data
Names: Hessbruegge, Jan Arno, author.
Title: Human rights and personal self-defense in international law / Jan Arno Hessbruegge.
Description: First edition | New York, NY : Oxford University Press, 2017. |
Based on author’s thesis (doctoral—European University Viadrina in
Frankfurt (Oder), Germany, 2016) issued under title: Te right to personal
self-defence as a general principle of law and its general application in
international human rights law. | Includes bibliographical references and index.
Identifers: LCCN 2016026173 | ISBN 9780190655020 ((hardback) : alk. paper)
Subjects: LCSH: Self-defense (Law) | International law and human rights.
Classifcation: LCC K5087.S4 H47 2017 | DDC 345/.04—dc23 LC record available at
https://lccn.loc.gov/2016026173
9 8 7 6 5 4 3 2 1
Printed by Sheridan Books, Inc., United States of America
Note to Readers
Tis publication is designed to provide accurate and authoritative information in regard to
the subject matter covered. It is based upon sources believed to be accurate and reliable and is
intended to be current as of the time it was written. It is sold with the understanding that the
publisher is not engaged in rendering legal, accounting, or other professional services. If legal
advice or other expert assistance is required, the services of a competent professional person
should be sought. Also, to confrm that the information has not been afected or changed by recent
developments, traditional legal research techniques should be used, including checking primary
sources where appropriate.
(Based on the Declaration of Principles jointly adopted by a Committee of the
American Bar Association and a Committee of Publishers and Associations.)
You may order this or any other Oxford University Press publication
by visiting the Oxford University Press website at www.oup.com.
v

to Angie
vi
vii

CONTENTS

Acknowledgments xi

1. Introduction 1

A . Summary of the argument 3

B . Delineation of the topic: What is personal self-defense? 4

I. Self-defense distinguished from other concepts of self-help 4

II. Personal self-defense versus interstate self-defense 6

C . Methodology and sources 9

I. Reliance on universal and regional jurisprudence 9

II. Transposition of jurisprudence from other disciplines of
international law 11

III. Consideration of arguments from domestic jurisprudence 14

2. Te Right to Personal Self-Defense as a General Principle of Law 17

A . No treaty provisions establish a right to personal self-defense 17

B . No recognition under customary international law 18

C . General principles according to Article 38(1)(c) of the ICJ Statute 21

I. Formation of general principles 22

II. Functions of general principles 25

D . Te right to self-defense as a principle of natural law 27

I. Personal self-defense: a shared principle across
cultural and religious traditions 30

II. Inherent moral justifcation of self-defense 47

E . Te right to self-defense as a general principle derived from
domestic law 58

I. Common classifcation as a right and justifcation 59

II. Comparable requirements of application 63

F . Transposition of the personal self-defense principle
into international law 67

I. International humanitarian law 68

II. International criminal law 70

III. Te law of the sea 71

IV. Te law of diplomatic relations 72

G . Conclusion: A universally recognized right, but no unlimited license for
violence 73
viii
viii Contents

3. A Human Right to Self-Defense? 75

A . Positions in the academic literature 76

B . Lack of state recognition of a human right to self-defense 78

I. No recognition of a human right in international
treaties or resolutions 78

II. Insufcient national practice supporting a human right 81

C . Conceptual diferences between the right to self-defense
and human rights 84

I. Inalienable nature as a commonality 85

II. Auxiliary and relational nature of the right to self-defense 85

III. No specifc aim of curbing state power and abuses 86

IV. Neutrality of the right to self-defense on the nature of the state 88

D . Conclusion: Right sui generis, not human right 89

4. Defensive Force by Law Enforcement Agents 91

A . Self-defense as a justifed limitation of the rights
to life and physical security 92

I. Recognition in universal and regional human rights law 93

II. Defensive force as a state obligation 100

III. Self-defense as the sole peacetime justifcation of deliberately lethal
force 103

B . Formal requirement: Sufcient basis for the use
of force in domestic law 117

I. Minimum specifcations 118

II. Publicity 121

III. Parliamentary prerogative to regulate lethal force 122

C . Substantive requirements for self-defense as a ground of
justifcation 124

I. Unlawful attack against protected individual interests 124

II. Immediacy of defensive action 139

III. Necessity of defensive action 143
IV. Organizational or precautionary duties 164

V. Proportionality of defensive action 170
VI. Absolutely prohibited means of self-defense: torture and
inhuman treatment 189

V II. Defensive intent 197

D . Burden of proof and evaluation of evidence 199

E . Post-action duties of care, accountability, and remedy 202

I. Medical care and psychosocial support 203

II. Duty to investigate incidents involving frearms and other force 204

III. Duty to prosecute perpetrators of excessive force 210

IV. Duties to provide compensation and make amends 213

F . Conclusion: A deep, but narrow, justifcation for the use
of force in law enforcement 215
ix
Contents ix

5. Personal Self-Defense in Military-Led Operations 217

A . Exceptional relevance of the personal self-defense principle in armed
confict 218

I. Riots, violent demonstrations, and opportunistic banditry 221

II. Violent prisoners of war and interned fghters 223

III. Enforcement of naval blockades and ceasefre lines 224

B . Military involvement in peacetime law enforcement 225

C . “Naked self-defense”—a confation of personal and interstate
self-defense 230

D . Conclusion: Exceptional relevance of personal self-defense in military-led
operations 233

6. Human Rights Standards for Self-Defense between Private Persons 235

A . Applicability of human rights standards to private self-defense 236

B . Duty to recognize a right to self-defense between private persons 239

C . Duty to regulate and reasonably circumscribe self-defense between
private persons 242

I. Unlawful attack on a defensible interest 244

II. Immediate defense: An exception for victims of intra-family
violence? 247

III. Necessity and proportionality 255
IV. Absolute prohibition of inhuman treatment 268

V. Special requirements regarding private security companies 270

D . Duty to investigate and prosecute excessive or unwarranted
self-defense 274

I. Immunities from prosecution 275

II. Burden of proof 276

E . No general right to possess frearms and other means of self-defense 278

I. Negative impact of gun proliferation on the protection of life and
physical security 280

II. No enhancement of women’s right to self-defense 284

III. No efective means to pre-empt tyranny or atrocities 285

IV. Te right to self-defense of unarmed citizens 288

F . Conclusion: Human rights circumscribe the ambit of private
self-defense 289

7. Self-Defense Against the State—Resistance Against
Human Rights Violations 293

A . Resistance against the state: a history of opposing views 294

I. Resistance as a legitimate defense against abusive governments 294

II. Unassailable authority based on divine mandate or constitutional
supremacy 297

III. Rebellion as a threat to order and stability 298

IV. Balancing stability and vindication of the right to self-defense 299